The only outside opinion on Deflategate that judges can hear
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Tom Brady. Roger Goodell. Robert Blecker.
One of those names doesn’t belong—except when it comes to the NFL’s appeal of U.S. District Judge Richard Berman’s ruling for Brady in the ongoing Deflategate saga. Blecker, a law professor at New York Law School and a former New York anti-corruption prosecutor, has authored and filed the only amicus brief in the case. He hopes that Judges Robert Katzmann, Barrington Parker, Jr. and Denny Chin on the U.S. Court of Appeals for the Second Circuit consider it carefully before they render a decision. An amicus brief (from the Latin amicus curiae, meaning literally “friend of the court”) is a legal filing written by a non-party person or group that has an established interest in the case. For Blecker, his established interest is integrity of sport, a topic for which he is a leading authority and one that lies at the heart of Deflategate.
Blecker’s 33-page amicus brief, filed last December within the deadline, sharply criticizes the NFL but also pans the NFLPA. Both sides, Blecker insists, fail to “explore the integrity of the arbitration process and its effect on the integrity of the sport.” Blecker is truly the third voice in this historic case. His preferred outcome is one that neither the NFL nor NFLPA seeks: the Second Circuit remanding the case back to Judge Berman for a full-fledged hearing. Only then, Blecker posits, can Brady be vindicated and the public’s confidence in sport be restored.
Blecker recently spoke to my students at the University of New Hampshire School of Law about his amicus brief and its core arguments. UNH Law media producer A.J. Kierstead has put together a 22-minute highlight reel of Blecker’s speech, which is available here:
Blecker’s core arguments
Blecker’s principal reason for writing the amicus brief stems from his frustration with both the NFL and NFLPA over what he considers a failure to question the honesty of the NFL’s investigation and accompanying conclusions.
From that lens, Blecker contends that the no court should affirm Brady’s four-game suspension. “From the start,” Blecker writes in his amicus brief, “the NFL’s investigation, adjudication, and punishment of Tom Brady for actively participating in a scheme to illegally tamper with ball pressure has been infected with bias, unfairness, evident partiality and occasional fraud.”
Blecker stresses how many in the scientific community have rejected the theories of Exponent, an engineering firm retained by Ted Wells to reach scientific conclusions about the footballs used in the 2015 AFC Championship Game. Blecker, in particular, highlights the research of Massachusetts Institute of Technology Professor John Leonard, who has demonstrated the PSI measurements taken at halftime were consistent with Ideal Gas Law. Others, like behavioral scientist Ben Taylor of Back Picks, have authored similarly critical commentaries about the NFL’s approach to data and measurement of air pressure. For Blecker, the science is essential to proving what he maintains is the fundamental truth: Brady was innocent. Keep in mind, Brady not serving a four-game suspension because he is innocent is a more morally authoritative victory for Brady than him not serving a suspension because the NFL erred.
With that in mind, Blecker’s brief also takes sharp aim at the NFLPA, of which Brady is of course a member. In Blecker’s view, the NFLPA has been interested less in vindicating Brady and more in limiting the powers of Goodell—two complementary but not identical goals. Blecker contends that although U.S. Supreme Court case law allows it, the NFLPA has repeatedly “failed to assert or explore the NFL’s bias, dishonesty, or fraud in the investigation.” Instead, Blecker insists, the NFLPA has dwelled on minor and technical issues, such as whether the collective bargaining agreement authorizes fines for first-time equipment violations. Blecker acknowledges the NFLPA’s primary duty is to pursue the best interests of all NFL players, not just those of Brady, but Blecker nonetheless contends the NFLPA has misguidedly downplayed crucial scientific and investigative facts while amplifying narrow concerns about methodology.
To illustrate, Blecker is deeply troubled that the NFLPA has not explained the significance of Brady being denied the NFL’s investigative interview notes, which Blecker insists would reveal significant bias by the NFL. Blecker is also dispirited by the NFLPA not responding to the NFL in its Oct. 26 court filing, comparing Brady’s alleged misconduct to players implicated in the Black Sox scandal during the 1919 World Series.
“How could the NFLPA,” Blecker muses, “not object to such an egregious and slanderous comment?”
Have the judges read Blecker’s amicus brief?
In assessing the NFL’s appeal, Judges Katzmann, Parker and Chin are limited in the materials from which they can draw. Those materials are restricted to the record of appeal, which includes materials that Goodell considered, transcripts of oral arguments before the judges and legal briefs filed by the parties. The record does not include the many media, legal and scientific commentaries about Deflategate. There is one exception: Blecker’s formally filed brief, which incorporates many of those commentaries, is part of the record. The judges, however, are not obligated to read amicus briefs or accord them any weight.
Blecker tells SI.com that he has not received official confirmation from the Second Circuit that his brief has been accepted. He is skeptical that it has been read and highly doubts that it had been when the judges presided over oral arguments on March 5. “When Judge Chin declared that the evidence of ball tampering was ‘overwhelming,’” Blecker said. “I knew he hadn’t read my brief. There’s absolutely no way he could have reached that conclusion if he had.”
Dueling letters by Blecker and NFL counsel
As I explained in a previous column, Paul Clement, the attorney who argued on behalf of the NFL at the March 5 hearing, made several statements during that hearing that are arguably at odds with the record. The NFL’s briefs similarly assert points that raise questions about whether those points are compatible with known facts.
Blecker, who attended the most recent hearing, took particular exception to these alleged misstatements. On March 17 he wrote a letter to Judges Katzmann, Parker and Chin warning them that the NFL aims to “mislead” them. Blecker is particularly alarmed at the league’s depiction of the word “deflator” appearing in text messages. While the league arguably states or implies that there were multiple such messages with this word and that they were sent over a period of time, there was in fact only one text with the word “deflator.” Patriots’ locker room assistant Jim McNally sent this lone text in May 2014 to assistant equipment manager John Jastremski. From the viewpoint of Blecker and others, the NFL’s brief on Oct. 26, 2015 clearly—and wrongly—expresses that multiple texts contained the word “deflator.” Here is the controversial sentence from that NFL brief:
In messages dating back to May 2014 and continuing during the 2014-2015 season, McNally referred to himself as “the deflator” and the two discussed deflation using “needles.”
Blecker calls this statement “literally false, contextually false and pragmatically false—it puts any reader out of working touch with reality and here that reader is the court.” While there were multiple messages about needles, there was only one message with “deflator.” “I would venture to say,” Blecker observes, “that if you asked 100 people whether that sentence refers to more than one Deflator message, 100 would say yes.” Blecker underscores that the first part of the sentence uses “messages” and he draws attention to the word “and”—rather than “or”—in the middle of the sentence.
“Every reasonable person would interpret that sentence as being about more than one Deflator text,” Blecker says. He believes such a misstatement is especially worrisome since it runs the risk of “fostering an initial impression that the evidence of football deflation was compelling.” He also portrays it as only one of several key misstatements by the NFL in the appeal.
Clement disagrees with Blecker and seems to have taken personal offense. On March 21, Clement went so far as to write a letter to Judges Katzmann, Parker and Chin in which he sharply criticized Blecker. In the letter, Clement writes that “Mr. Blecker’s accusations are wholly unfounded as a factual matter and in all events immaterial.” As to the Oct. 25 brief containing the Deflator statement, Clement writes, “That statement is accurate in all respects: Mr. McNally referred to himself as ‘the deflator’ in a text message in May 2014, and the two men discussed deflation using ‘needles’ in other text messages during the 2014-2015 season.”
In an interview with SI.com, Blecker stresses that his letter to the court never once referred to Clement by name and he is disappointed that Clement has responded so personally. “I have always said ‘NFL counsel,’ which by the way includes NFL general counsel Jeffrey Pash, the co-lead investigator, and all of the other NFL attorneys who reviewed briefs before they were filed to the court with misstatements,” Blecker says. “It would be inaccurate to say ‘Clement’ when he is only part of the problem.” Further, Blecker wishes to remind NFL attorneys of Rule 3.3 of the Model Rules of Professional Conduct. Rule 3.3 prohibits attorneys from knowingly making false statements of fact or law to a court or failing to correct false statements. It is unclear if NFL attorneys will respond to Blecker’s admonishment.
Could Blecker’s brief and game theory prevent the NFL from winning?
It remains to be seen if Judges Katzmann, Parker and Chin incorporate the Blecker amicus brief or his letter in their decision. Blecker believes Clement has unintentionally increased the odds of Blecker’s amicus brief playing a role in the decision. “Clement’s letter,” Blecker reasons, “forces the judges to review my letter, which forces them to consider what I wrote in the brief.”
Blecker maintains the amicus brief could play a pivotal role, and he uses game theory to explain why. “Let’s say that one of the three judges wants to affirm, one wants to reverse and one wants to reverse and remand,” Blecker says. In that scenario, the NFL would seem to have won by a 2–1 vote. But not so fast. “The judge who wishes to affirm might strategically change his vote to support the judge wishing to remand. That way, the case goes back to district court for further proceedings and while Brady isn’t the winner, the NFL isn’t, either. Maybe those of us concerned with the integrity of the sport win.”
Or maybe not. If the case were remanded, what might happen? “The last thing the NFL wants is another hearing on this case,” Blecker says. “I expect the NFL would quickly reach out to Brady and to try to cut a deal where he is only fined for destroying the phone.” While Brady and Patriots fans would be pleased to see him available to start the 2016 season and for Deflategate to be over, Blecker wouldn’t be happy with that outcome. “We still wouldn’t get the full hearing that is needed and Brady would in the minds of some forever be linked to something he most probably didn’t do.”
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.